# Opposition Brief — Taub v. City of Deer Park

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1112

## Text

©

| BIBRED
No. 94-935
| DEC. 2 1 1894
IN OFFICE OF THE QUERK

Supreme Court Of The Anited States

OCTOBER TERM, 1994

HENRY J.N. TAUB,

Petitioner,
Vv a

CITY OF DEER PARK, TEXAS,
Respondent.

On Petition For Writ Of Certiorari To
The Supreme Court Of Texas

RESPONDENT'S BRIEF IN OPPOSITION

William A. Olson, Jr.

Olson & Olson

Three Allen Center, Suite 3485
333 Clay Street

Houston, Texas 77002

(713) 759-0696

Counsel of Record for Respondent

December 21, 1994

Alpha Law Brief Company © Houston, Texas © (713) 981-9000 © 1-800-981-9001

i

TABLE OF CONTENTS

Page
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TABLE OF AUTHORITIES .. = Tt re ee eee ii
STATERERNT GP THE CAG 6 icc oe cic eb cee |
REASONS WHY THE WRIT SHOULD
AR ee a OP Naar ei ae as 6

TABLE OF AUTHORITIES

Cases: Page

Agins v. City of Tiburon,
S67 U2. te, GD ce ceactv ar vesren 7,8

Armstrong v. United States,
ee U.S. Ge 2 e800 8a eae 7

First English Evangelical Lutheran Church
of Glendale v. City of Los Angeles,
Cae., GS UA Se ee nis ve ee ewes 7

Hadacheck v. Sebastian,
Rae a ee Ce 66 RN we ke dss 8

Keystone Bituminous Coal Ass’n v. DeBenedictis,
Cae SB. Grp Go heed eee ek 2D

Lucas v. South Carolina Coastal Council,
pame * ee S eeren ee 7

Penn Central Transportation Co. v. City
of New York, 438 U.S. 104 (1978) ....... 7,8

Pennsylvania Coal Co. v. Mahon,
Bee is ee en 6s Hb hee eae 7,8

Village of Euclid, Ohio v. Ambler Realty Co..,
See a a EE 4 Ree ee eR ee 8

No. 94-935

IN THE

Supreme Court of the United States
OCTOBER TERM, 1994

HENRY J.N. TAUB,

Petitioner,

Vv.

CITY OF DEER PARK, TEXAS,
Respondent.

On Petition For Writ Of Certiorari To
The Supreme Court Of Texas

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, City of Deer Park, Texas, respectfully
requests that this Court deny the Petition for Writ of
Certiorari seeking review of the judgment in this case by the
Supreme Court of Texas. The opinion of the Supreme Court
of Texas is reported at 882 S.W. 2d 824 and is reprinted in
the appendices to the Petition for Writ of Certiorari.

STATEMENT OF THE CASE

Petitioner's statement of the case is misleading,
incomplete, and inaccurate. The following accurately reflects
the facts material to the Questions Presented in the petition.
Unless otherwise indicated, references are to the record in the
district (trial) court. "Tr." refers to the Transcript of the
record; "S.F." refers to the Statement of Facts; "Px.,"
"Dx.,” and "Jt. Ex.” refer to plaintiff's exhibits, defendant's

2

exhibits, and joint exhibits, respectively. References to
"Pet." are to the Petition for Writ of Certiorari.

For clarity, Petitioner will be referred to as "Taub"
and Respondent will be referred to as "Deer Park" or "City."

The issue presented in this case is whether a Deer
Park zoning regulation restricting the use of Taub’s property
to single-family residential purposes constitutes an “economic
taking."

Taub was the owner of a 69.6684 acre tract of land
(hereinafter referred to as the "Tract") located within the
corporate limits of Deer Park. (S.F. Vol. 2, p. 106). His
family acquired the Tract in the 1930s. (S. F. Vol. 2,
p. 117). Taub acqvired his interest in the Tract through
inheritance. (S.F. Vol. 2, p. 106).

In 1978, Deer Park filed two eminent domain
proceedings to acquire certain portions of the Tract. The
City sought 2.4691 acres for street improvements and
another 14.5616 acres to construct a drainage ditch. Special
Commissioners were duly appointed, hearings were
conducted, and awards were made for the value of the
property taken and the damage to the remainder. Taub duly
filed objections to such awards and perfected an appeal.
(S.F. Vol. 3B, Jt. Ex. C).

Deer Park originally enacted a comprehensive plan
and zoning ordinance in 1963. In 1971, the City’s
comprehensive plan was updated and the current zoning
ordinance was enacted. The Tract is zoned single-family
residential under the provisions of such ordinance. (S.F.
Vol. 3B, Jt. Ex. A). The zoning classification of the Tract
remained single-family residential without dispute until 1980
when, prior to the trial of his appeal of the condemnation

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awards, Taub filed an application with the Planning and
Zoning Commission of Deer Park seeking to rezone the
Tract, including portions of the land sought to be condemned
by Deer Park, from single-family residential to multi-family
residential. (S.F. Vol. 4, Px. 7).

The Planning and Zoning Commission and City
Council timely conducted public hearings on Taub’s rezoning
application. In such hearings, Deer Park residents, as well
as City and school officials, strenuously objected to Taub’s
rezoning request. There was substantial testimony that
rezoning the Tract for multi-family residential use would
seriously impede Deer Park’s ability to provide adequate and
necessary City services. Directors of various City
departments agreed that multi-family housing on the Tract
would upset a well-planned comprehensive program for fire
and police protection, traffic control, water and sanitary
sewer services, and_ recreational facilities. The
superintendent of the Deer Park Independent School District
testified that the proposed rezoning would detrimentally alter
long-range planning for schools, building programs, bond
issues, and student education. Both the Planning and Zoning
Commission and the City Council voted unanimously to deny
Taub’s request. (S.F. Vol. 3B, Jt. Ex. B).

Taub then filed in district court his Original Petition
and Application for Temporary Restraining Order and
Temporary Injunction alleging that Deer Park’s refusal to
rezone his property from single-family residential to multi-
family residential was arbitrary, unreasonable, and
confiscatory because the restriction denied him the beneficial
use of his property, thus depriving him of such property
without due process of law and without just compensation.
(Tr. 6, 11). In such proceeding, Taub sought to enjoin the
filing of the awards in the condemnation proceedings,
thereby delaying the date of the taking until such time that

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the validity of the City’s denial of his rezoning request could
be determined. Taub asserted that if the denial of his
rezoning request were adjudged improper, he would be
entitled to valuation of a portion of the condemned tracts,
and any damage to the remainder, on the basis of their value
for multi-family residential purposes, which he alleged would
result in the Tract having a much higher value. (Tr. 10). The
condemnation proceedings filed by the City were transferred
to the district court and consolidated with Taub’s action.
(Tr. 71). The trial court found that rezoning the Tract from
single-family residential to multi-family residential would
seriously impede the City’s ability to provide necessary
services for the health, safety, and welfare of its citizens,
that Deer Park’s zoning regulations were not unreasonable or
arbitrary, that the City’s refusal to rezone the Tract was not
unreasonable or arbitrary, or confiscatory, and that the value
of the property condemned by Deer Park was $7,000 per
acre. (Tr. 166-169).

Taub does not challenge the legitimacy of the
governmental action in this case, nor does he contend that the
zoning regulation does not substantially advance legitimate
State interests. In fact, he admits that the City’s zoning
regulation was adopted to accomplish a legitimate goal and
that it is substantially related to public health, safety, and
general welfare. (Petitioner’s Application for Writ of Error
to the Supreme Court of Texas, p. 23). The gravamen of
Taub’s challenge is based on the argument that inclusion of
the Tract within the City’s single-family residential zoning
district is confiscatory and invalid because it denies him any
viable economic use of such property and therefore amounts
to an “economic taking."

In his Petition for Writ of Certiorari Taub represents,

as established fact, that the governmental action denied him
any viable economic use of the Tract. Neither the record in

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this case nor the findings of the courts below support this
representation.

The only evidence offered by Taub that the City’s
actions deprived him of any viable economic use of the Tract
consisted of an engineering study (S.F. Vol. 4, Px. 1) which
assumed Taub’s property would be developed into a
subdivision with a specified lot size, lot price, home size,
and home price range. The study concluded, based on such
assumption, that a single-family residential development on
the Tract would not be profitable. The study did not
consider alternative schemes for single-family residential
development, nor did it consider future prospects of
profitable development for such purposes. In other words,
the study was limited to a single development scenario from
a snapshot in time.

Additional evidence contradicts Taub’s assertion that
the City’s zoning restriction denied him any viable economic
use of the Tract. That evidence relates to the market value
of the Tract. It is uncontroverted that the Tract has
substantial market value. Taub testified that, in his opinion,
the Tract’s value for single-family residential purposes was
about $15,000 per acre. (S.F. Vol. 2, p. 112). Taub’s own
expert appraiser testified that the Tract had a fair market
value of $7,000 per acre. (S.F. Vol. 2, p. 84; S.F. Vol 4,
Px. 4). This valuation took into consideration the highest
and best use of the Tract as restricted by its single-family
residential zoning. (S.F. Vol. 4, Px. 4, p. 1-2). The
appraiser could not have determined such value without
concluding that the Tract could be profitably developed or
that its profitable development was anticipated.

Taub testified that he, and his family before him, held
the Tract simply as an investment. (S.F. Vol. 2, p. 130,
132). There is no evidence that he was in the real estate

6

development business or that he had any intent or desire to
develop the Tract. It appears that he was interested in
rezoning the Tract to a multi-family residential classification
because of the potential increase in its market value, an
increase which would affect both the award in the
condemnation proceedings and the proceeds from any future
sale of the property.

The uncontroverted evidence in this case clearly
establishes, and the courts below found, that: (1) the City’s
land use regulation advances a legitimate state interest which
has a substantial relationship to public health, safety, morals,
and general welfare; and (2) the impact of the regulation did
not render Taub’s land useless or deprive him of all
economically beneficial use thereof. After weighing the
public and private interests involved, the Supreme Court of
Texas correctly concluded that Taub had failed to show a
sufficiently severe economic impact to establish an
"economic taking." (Pet. A-4).

REASONS WHY THE PETITION SHOULD BE DENIED

The Supreme Court of Texas followed the standards
promulgated by this Court in determining whether Deer
Park’s single-family residential zoning classification of the
Tract constitutes an “economic taking."

No "set formula” has been established to determine
whether or not a particular governmental regulation results
in an economic taking. Instead, this Court has preferred to
engage in essentially ad hoc, factual inquiries. Several
factors have particular significance in the determination of an
economic taking case: (1) the economic impact of the
regulation on the claimant and, particularly, the extent to
which the regulation has interfered with distinct investment-
backed expectations; and (2) the character of the

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governmental action. Penn Central Transportation Co. v.
City of New York, 438 U.S. 104 (1978).

The first inquiry should examine the extent of
economic impact on the claimant resulting from the
regulation and the legitimacy of the state interest. Generally,
if a zoning ordinance denies an owner all economically viable
use of his property, or does not substantially advance
legitimate state interests, it effects a taking. Lucas v. South
Carolina Coastal Council, U.S. _,112 S.Ct. 2886, 2894
(1992); Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).

The leading cases which have held that takings
occurred as a result of economic impact have been based on
findings that the properties in issue were rendered wholly
useless or their values totally destroyed, thus denying all
economically beneficial or productive use of such properties.
Lucas; First English Evangelical Lutheran Church of
Glendale v. City of Los Angeles, Cal., 482 U.S. 304 (1987);
Armstrong v. United States, 364 U.S. 40 (1960);
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
Property is rendered wholly useless when the governmental
regulation prohibits any use of the property or the regulation
is so burdensome that it has the effect of rendering the
property valueless. In Lucas and First English, the
governmental regulation actually prohibited any meaningful
use of the property. In Armstrong, the total value of the
property was destroyed. In Pennsylvania Coal, the
governmental regulation made use of the properties
impractical to the extent they were rendered useless for the
investment backed expectations of the owners.

Decisions sustaining land use regulations which are
reasonably related to the preservation and promotion of
general welfare uniformly reject the proposition that

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diminution in property value, standing alone, can establish a
taking. Penn Central, 438 U.S. at 131. See also Village of
Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926)
(75% diminution in value) and Hadacheck v. Sebastian, 239
U.S. 394 (1915) (92.5% diminution in value). Absent a
finding that the governmental regulation does not
substantially advance legitimate state interests or that it
denies an owner all economically viable use of his property,
the question of whether the governmental action constitutes
a taking requires a weighing of public and private interests.
In those situations where a zoning regulation substantially
advances legitimate governmental goals, the benefits to the
public must be considered along with any diminution in
market value that the property owner might suffer. Agins,
447 U.S. at 261-262. The determination of whether a taking
occurs requires an ad hoc, factual inquiry into the character
and legitimacy of the governmental action weighed against
the extent of diminution in value. Agins; Penn Central;
Pennsylania Coal. Such a balancing is required in this case.

These standards for review in an economic taking
case are precisely the standards followed by the Supreme
Court of Texas in rendering its decision in this case. The
court recognized that "[A]n act short of actual physical
invasion, appropriation, or occupancy can amount to a
compensable taking when a government agency has imposed
restrictions that constitute an unreasonable interference with
the landowner’s right to use and enjoy the property.". (Pet.
A-3). The court’s first inquiry examined the extent of
economic impact Deer Park’s zoning regulation had on
Taub’s Tract. It recognized the importance of the
consideration of whether Taub’s property had been rendered
wholly useless or whether its value had been totally
destroyed, noting that total destruction by the government of
all value is a taking. (Pet. A-3). However, the court found
that “Taub’s land is not rendered completely useless or

9

deprived of all economically beneficial use."' (Pet. A-4).
The court then properly weighed the character of the
governmental action and its uncontested legitimacy against
the economic impact of such action cn Taub’s Tract. It’s
conclusion was that Taub failed to show, under the
circumstances of this case, a sufficiently severe economic
impact to constitute a taking (Pet. A-4).

In this case, Taub failed to show any deprivation
significant enough to Satisfy the heavy burden placed upon
one alleging a regulatory taking. Keystone Bituminous Coal
Ass'n v. DeBenedictis, 480 U.S. 470 (1987).

The hypothesis of Taub’s argument that the holdings
of the Supreme Court of Texas conflict with applicable
standards established by this Court, and that such holdings
were in error, is predicated on the assumption that Deer
Park’s zoning ordinance denies him all economically
beneficial use of his property. Taub’s assumption is contrary
to the evidence presented in this case and to the findings of
the courts below.

The only evidence presented by Taub regarding the
economic impact of the City’s zoning restriction was an
engineering study. The Study was limited in scope, and its
opinion regarding profitability was drawn from a narrowly
defined scheme of single-family residential development
which considered only economic conditions existing at the
point in time of such study. The study failed to consider
both future prospects for profitable development of the Tract

10

for single-family residential purposes or alternative single-
family development schemes.

The determination of economic impact must include
time as a factor; it cannot be validly judged from a snapshot
in time. If such were the case, the impact of each and every
zoning action would be measured by temporary economic
conditions only, without regard to factors realistically
affecting profitability which are totally unrelated to the
zoning regulation. With or without zoning, temporary
market conditions frequently make property unsuitable for
immediate development. Surely there are thousands of zoned
tracts of land in this country which are not subject to
profitable development at this moment; however, each may
have substantial value based upon reasonably anticipated
changes in economic conditions or other market factors.
Such anticipated changes might include simple upward turns
in the local or national economies or something more
definite, such as the extension of roadway or drainage
systems, or water or sewer facilities, the development of
adjacent or neighboring properties, or demand resulting from
the influx of population. Under such circumstances the
properties maintain substantial value because of the
reasonable anticipation of their future profitable development.

In addition, Taub offered no evidence of profitability
using alternative development schemes.? The demand for
housing is not fixed to a particular lot size or price range.
The market for housing may include a wide range of

? Taub’s statement in footnote 6 on page 6 of his Petition that "[A]ll other
possibilities were considered and rejected as being even less productive"
is inaccurate. There was no evidence presented at trial to that effect nor
was there any evidence presented which would support the conclusion
that no alternative single-family residential development scenario would
be profitable.

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development schemes, with innumerable alternatives. No
evidence of the profitability of any other market than that
contained in the limited engineering study was offered.

When undeveloped Property is involved, a precise
indicator of the economic impact of a land use restriction is
its effect on the property’s fair market value. In this case,
there was no value established before the imposition of the
zoning restriction. There is, however, proof as to the
Tract’s value at the time of the alleged taking. That proof is
the uncontroverted evidence that Taub’s Tract has a
substantial value. Taub’s own expert appraiser testified that
the Tract had a fair market value of $7,000 per acre. His
valuation of the Tract took into consideration that its use was
restricted by Deer Park’s zoning ordinance to single-family
residential purposes. In arriving at such value, the appraiser
had to conclude that it could either be profitably developed
or that its profitable development was reasonably anticipated.
Clearly, this evidence establishes that Taub’s Tract has a
substantial economically beneficial use.

Taub’s proof regarding the profitability of
development of the Tract for single-family residential
Purposes was inadequate to establish that such zoning denied
him all economically beneficial use of his property. Such
was the holding in the courts below.

There was no finding of fact by the trial court that the
Tract could not be profitably developed as single-family
residential, nor was there a finding that the City’s zoning
Classification, or refusal to rezone, denied Taub all
economically beneficial use of the Tract. (Tr. 161). To the
contrary, the trial court found that Taub’s Tract was suitable
for use as single-family residential, that the City’s zoning
ordinance was not unreasonable or arbitrary, and that the
refusal to rezone the Tract to multi-family residential was not

12

confiscatory. (Tr. 168-169; Pet. D-4). The Texas Court of
Appeals concluded that Taub’s evidence was insufficient to
prove, as a matter of law, that any single-family residential
development would not be economically feasible (Pet. B-4),
and the Supreme Court of Texas concluded that Taub had not
been deprived of all economically beneficial use of his
property. (Pet. A-4).

The evidence is clear and uncontroverted that Taub
held the Tract for investment purposes, and that under a
single-family zoning classification it had a substantial value
of at least $7,000 per acre. Considering Taub’s investment-
backed expectations, and the character and legitimacy of the
governmental action involved, the economic impact of the
City’s single-family residential zoning classification clearly
does not reach the threshold necessary to establish an
economic taking.

Neither the decision below nor the record of this case
raise the Questions Presented in the petition. The standards
for review of an economic taking case established by this
Court are the standards precisely followed by the Supreme
Court of Texas in this case. The record clearly establishes
that the City’s zoning regulation was adopted to accomplish
a legitimate goal and that it is substantially related to public
health, safety, and general welfare. It is equally clear that
Deer Park’s zoning regulation has not denied Taub the
economically beneficial use of his property. To the contrary,
the undisputed evidence establishes that Taub’s Tract has
substantial value and, considering his expected use of it as an
investment, a substantial economically beneficial use. The
Supreme Court of Texas weighed the character of the
governmental action, and the economic impact of such action
on the property affected, and correctly concluded under the
circumstances of this case that Taub had failed to establish a
sufficiently severe economic impact to establish a taking.

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The application of standards Clearly established by
this Court to the record in this case results in the
unmistakable conclusion that Deer Park’s zoning regulations
do not effect an " econom’- taking" of Taub’s Tract. The
opinion of the Supreme Court of Texas is clearly in harmony
with the jurisprudence of this Court. This case presents no
issue of law undecided by this Court.

CONCLUSION

For the foregoing reasons, the petition for writ of
certiorari should be denied.

Respectfully Submitted,

William A. Olson, Jr.

Olson & Olson

Three Allen Center, Suite 3485
333 Clay Street

Houston, Texas 77002
Telephone: (713) 759-0696

Counsel of Record for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0874%3A2. Public record. Not legal advice.